| Matter of Sharyn PP. v Richard QQ. |
| 2011 NY Slip Op 02758 [83 AD3d 1140] |
| April 7, 2011 |
| Appellate Division, Third Department |
| In the Matter of Sharyn PP., Appellant, v Richard QQ., Respondent.(And Two Other Related Proceedings.) |
—[*1]
Egan Jr., J. Appeal from an order of the Family Court of Cortland County (Campbell, J.),entered November 17, 2009, which, among other things, dismissed petitioner's application, inthree proceedings pursuant to Family Ct Act articles 6 and 8, for modification of a prior order ofcustody and visitation.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the divorcedparents of three children, Megan QQ. (born in 1991), Brandon QQ. (born in 1993) and VictoriaQQ. (born in 1995). In 2004, the parties stipulated to an order in which they would share jointlegal custody of the children, with the father having sole physical custody and the mother havingcertain supervised parenting time. Based on her diagnoses as a polysubstance abuser, the motherwas further ordered to enroll in substance abuse counseling and was granted leave to apply forincreased and unsupervised visitation upon her compliance with recommendations of hersubstance abuse counselor. In June 2006, after a period of two years in which the mother hadlittle contact with the children due to bouts of mental illness and substance abuse, Family Courtgranted the father sole legal and physical custody, with the mother having certain supervisedvisitation, which could, again, be increased upon the mother's compliance with substance abusecounseling. In December 2008, the parties consented to an order (entered in April 2009) alteringthe times of the mother's visitation, but the 2006 order otherwise remained [*2]unchanged.[FN1]
In February 2009, the mother commenced the first of these proceedings seeking sole custodyof the children alleging, among other things, that the father mentally, physically and sexuallyabused the children, that the children should decide where they want to live and that she hadsuccessfully completed a substance abuse treatment program.[FN2] At the same time, the mother filed a violation petition against the father claiming, among otherthings, that he was not abiding by the visitation schedule. Then, in March 2009, premised onallegations that the father had turned off the hot water while Megan was in the shower and thathe had subjected her to interrogation-like questioning, the mother filed a family offense petitionagainst the father. Based on a letter from the father, which Family Court treated as both ananswer and a motion to dismiss, Family Court dismissed the mother's February 2009 violationpetition and that part of the modification petition asserting allegations of abuse and that thechildren should decide where they want to live as a basis for demonstrating a change incircumstances.
In April 2009, the father commenced a proceeding alleging that the mother violated theexisting custody order in that, among other things, she had an unsupervised visit with Megan andsigned a consent form to allow Megan to get her nose pierced, despite the father's orders to thecontrary. In June 2009, the mother filed an amended family offense petition and a secondamended custody modification petition alleging, among other things, that the father sexuallyabused Victoria and Megan, that the father consumed alcohol and used marihuana in front of thechildren and that, on one occasion in June 2009, the father drove a vehicle down a drivewaynearly striking Megan. Family Court granted the father's motion to strike certain portions of themother's petitions, including allegations of sexual abuse and those pertaining to alcohol andmarihuana consumption in front of the children. Family Court further limited the mother's proofto allegations occurring after December 2008—the date of the last custody order.Following a fact-finding hearing that was conducted in November 2009, Family Court dismissedthe mother's second amended modification petition, finding that she failed to establish asufficient change in circumstances. In addition, Family Court dismissed the mother's amendedfamily offense petition and granted the father's violation petition. The mother now appeals.
We first address the mother's argument that the father's conduct with respect to the June 2009driveway incident constituted disorderly conduct, harassment in the second degree and menacingin the third degree and, thus, Family Court erred in dismissing her amended family offensepetition. A family offense must be established by a "fair preponderance of the evidence throughthe admission of 'competent, material and relevant evidence' " (Matter of Patricia H. v Richard H., 78AD3d 1435, 1436 [2010], quoting Family Ct Act § 834; see Matter of Chadwick F. v Hilda G.,77 AD3d 1093, 1094 [2010], lv denied 16 NY3d 703 [2011]). At the hearing on thismatter, Megan testified that, in June 2009, she had a verbal altercation with her father in theirdriveway about certain earrings that she was wearing and that, after refusing to give him the[*3]earrings and walking away, her father got in his vehicle andbacked down the driveway after her. Megan further testified that, although she was unaware ofhow close the vehicle was to her, she feared that she would be struck by the vehicle. The fathertestified that, after the verbal altercation with Megan in the driveway, she began to run down thedriveway away from him. The father testified that he got into his vehicle and backed down thedriveway in an attempt to catch up with Megan, but denied attempting to strike her. Based on thetestimony and evidence, and deferring to Family Court's credibility determinations (see Matter of Eck v Eck, 44 AD3d1168, 1169 [2007], lv denied 9 NY3d 818 [2008]), we decline to disturb the court'sconclusion that the proven conduct does not support a finding that the father engaged in actsconstituting harassment in the second degree, menacing in the third degree or disorderly conduct.
Next, we note that, inasmuch as Megan has reached the age of 18, the instant appealchallenging Family Court's order denying the mother's modification petition is rendered moot asto that child (see Matter of Stiles vBaum, 78 AD3d 1383 [2010]; Matter of Heidi E. [Tresea F.—Phyllis G.], 68 AD3d 1174,1174 [2009]). With respect to the mother's petition seeking modification of the existing custodyorder as to Brandon and Victoria, she must establish "a change in circumstances reflecting a realneed for change in order to insure the continued best interest[s] of the child[ren]" (Matter of Robert SS. v Ashley TT., 75AD3d 780, 781 [2010] [internal quotation marks and citations omitted]; see Matter of Paul T. v Ann-Marie T.,75 AD3d 788, 789 [2010], lv denied 15 NY3d 713 [2010]; Matter of Henderson v MacCarrick, 74AD3d 1437, 1439 [2010]). Here, the mother claimed that a sufficient change in circumstancehad occurred since entry of the prior order by virtue of her completion of a substance abuseprogram, the children's wishes to live with her and the June 2009 driveway incident. In itsdetermination, Family Court discounted the mother's substance abuse treatment, finding that shemisreported to her counselors that she sought treatment based on "alcohol in the family" insteadof based on her own substance abuse problems. Furthermore, while both Brandon and Victoriawere present during the June 2009 driveway incident, it was well within Family Court'sdiscretion to find that "at no time were the children placed in harm's way and there is no credibleevidence that [the father] intended or attempted to hit Megan with his vehicle" (see Matter of Sierra C. [Deborah D.],74 AD3d 1445, 1448 [2010]; Matter of Henderson v MacCarrick, 74 AD3d at 1440).Finally, the record supports Family Court's determination that the children's preference to livewith the mother failed to establish a change in circumstances (see Matter of Burch v Willard, 57 AD3d 1272, 1273 [2008]).Accordingly, we find a sound and substantial basis in the record to support Family Court'sdecision dismissing the mother's second amended modification petition. Contrary to theargument made by the attorney for the children, since the mother failed to establish the thresholdchange in circumstances, Family Court was not required to undertake a best interest analysis (see Matter of Kerwin v Kerwin, 39AD3d 950, 951 [2007]).
We are likewise unpersuaded that the attorney for the children provided ineffective assistanceof counsel. The record discloses that counsel participated in the hearing by calling Megan as awitness, conducting redirect examination of her and providing a summation expressing thewishes of his clients. Thus, while counsel's representation was not flawless, under thecircumstances herein, we find that the children nevertheless received meaningful representation(see People v Baker, 14 NY3d266, 270 [2010]; Matter ofFerguson v Skelly, 80 AD3d 903, 906 [2011]; Matter of Arieda v Arieda-Walek, 74 AD3d 1432, 1434 [2010]).
To the extent that the mother challenges Family Court's determination to strike certainportions of the pleadings and to limit the proof at the trial of this matter, she failed to oppose thefather's motion seeking such relief and, accordingly, she has failed to preserve for our review any[*4]challenge to Family Court's order in that regard (seeBorowiak v Kwitzer, 261 AD2d 916, 917 [1999]). Furthermore, inasmuch as no appeal wastaken from Family Court's order dismissing the February 2009 violation petition (seeFamily Ct Act § 1113), any challenge to that order is not properly before us (see Matter of Melody J. v Clinton CountyDept. of Social Servs., 72 AD3d 1359, 1360 [2010], lv denied 15 NY3d 703[2010]). Likewise, to the extent that the attorney for the children takes issue with Family Court'sNovember 2009 order, we note that no appeal was taken by the attorney for the children fromthat order and, therefore, her argument is not properly before us (see Matter of Gardner v Gardner, 69AD3d 1243, 1244 n 1 [2010]; Cassadei v County of Schenectady, 50 AD3d 1439, 1439 n 1[2008]; Matter of Herman vVillafane, 9 AD3d 525, 526 n [2004]). The mother's remaining arguments—thatFamily Court abused its discretion in granting the father an adjournment prior to trial to obtaincounsel (see Matter of Braswell vBraswell, 80 AD3d 827, 829 [2011]) and in denying the mother's motion to precludebased on the father's untimely service of an answer and responses to discovery demands (see Jessmer v Martin, 46 AD3d1059, 1060 [2007])—have been reviewed and are found to be without merit. Finally,we do not find that comments made by counsel during his summation regarding allegations thatwere previously stricken to be so prejudicial as to warrant reversal (see Matter of GaylordII., 106 AD2d 823, 825 [1984]).
Spain, J.P., Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed, without costs.
Footnote 1: Family Court refers to the 2006order as being dated May 9, 2006. In fact, the 2006 order was dated and entered June 26, 2006.
Footnote 2: In March 2009, the mother filedan amended modification petition that attached documentation indicating that she hadsuccessfully completed substance abuse counseling.